BUILD Act Makes Two Major Changes to CERCLA

Winston & Strawn LLP
Maura T. Levine-Patton and John Fehrenbach

January 10, 2019

In March 2018, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). The Environmental Protection Agency (EPA) solicited comments on the BUILD Act through July 10, 2018 and recently incorporated the Act’s changes in its FY 2019 brownfields grants guidelines. The BUILD Act makes two major changes to CERCLA: it increases funding for brownfield redevelopment grants, and formally extends the bona fide prospective purchaser (BFPP) statutory defense to tenants of contaminated sites, which previously had been a policy of EPA. Applications for grants to address sites contaminated by hazardous substances, pollutants, or contaminants under the new BUILD Act guidelines are due to EPA by January 31, 2019.

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Pennsylvania’s First PFAS Advisory Meeting Summary

Synergy Environmental, Inc.
Brian Loughnane, P.G
Bloughna@synergyenvinc.com

January 8, 2019

Much is being discussed in the news throughout Pennsylvania about Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS), which are part of a larger group of chemicals referred to as perfluoroalkyl substances (PFAS).  Concern exists about their release into the environment, their health effects and efforts needed to remediate PFAS. To help Pennsylvania residents learn more about PFAS, and to receive input from representatives of government, industry and advocacy groups, the Wolf Administration held its first public meeting of its multi-agency PFAS Action Team Friday, during November 30, 2018.

PADEP PFAS Action Team – 2018

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‘Waters of the United States’ rule from EPA, Corps may make real estate development more easily achievable and less costly

Thompson Coburn LLP
Spenser Owens and Paul Sonderegger

January 14, 2019

On December 11, 2018, the United States Environmental Protection Agency (EPA) and United States Department of the Army, Corps of Engineers (Corps) released for publication a new proposed “Waters of the United States” rule (WOTUS Rule) pursuant to their respective authorities under the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., also known as the Clean Water Act (CWA). If finalized in its current form, the new WOTUS Rule may have a profound effect on real estate developers, open new areas for development and construction, and reduce project costs.

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Recent Third Circuit Decisions Help Define Contours of CERCLA Liability

Riker Danzig Scherer Hyland & Perretti LLP
Alexa Richman-La Londe

January 7, 2019

Reprinted with permission. © 2019 Riker Danzig Scherer Hyland & Perretti LLP

The United States Court of Appeals for the Third Circuit recently handed down two noteworthy decisions on environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). One involves the appropriate methodology for allocation of cleanup costs between two responsible parties based on equitable factors; the other involves whether a new owner of contaminated property is responsible for governmental response costs incurred prior to its purchase of the relevant property. Both set new precedent that should be of interest to the regulated community.

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Proposed Changes to PADEP’s Management of Fill Policy

Synergy Environmental, Inc.
Brian Loughnane, P.G

December 18, 2018

A draft of the PADEP’s Management of Fill Policy is out for review, here are some thoughts from an Environmental Consultant.

Land owners, real estate developers, excavation contractors, municipalities, environmental consultants and lenders need to take note of the upcoming changes that will be occurring with the Pennsylvania Department of Environmental Protection’s (PADEP’s) Management of Fill Policy (Fill Policy).   During mid-November 2018 PADEP issued a notice that the current (first published during 2004 then amended in 2010) Fill Policy is being revised.  A draft has been issued and is out for review until early January 2019.  Projects and activities that involve earth disturbance or excavation will be impacted by the new Fill Policy.

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PFAS – Let’s Let the Science Catch Up

Hunton Andrews Kurth LLP
Daniel J. Grucza

December 10, 2018

Because of their widespread environmental presence, persistence and bioaccumulation, the group of substances known as PFAS have been described as a “Perfect Storm” of liability. The number of plaintiff’s suits concerning PFAS have spiked in the last few years. Also, EPA faces increasing bipartisan calls from Congress to adopt new drinking water standards and cleanup levels. In the interim, states are filling the void. In October 2017, the New Jersey Department of Environmental Protection announced a maximum contaminant level (MCL) of 14 parts per trillion for PFOA. Some NGO’s have called for levels as low as 1 part per trillion.

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USEPA and Army Corps Propose New WOTUS Rule

Vorys Sater Seymour and Pease LLP
Ryan D.Elliott

December 11, 2018

This article was originally posted in the Vorys Energy & Environmental Law Blog

On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow WOTUS definition. Specifically, the new proposed rules defines 6 categories of waters subject to USEPA/Army Corps jurisdiction:

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“The State Doesn’t Care If It Works”: Why Voluntary Cleanup Programs Succeed (or Not)

Hunton Andrews Kurth LLP
Dan J. Jordanger

November 28, 2018

Nobody wants to live near a designated “Superfund” site. Aside from potential exposure to hazardous chemicals, the stigma associated with proximity to a Superfund site leads to loss of property value. In addition, the Superfund process is notorious for its record of protracted and expensive cleanups. In view of these well-founded concerns, a number of states have adopted voluntary cleanup programs (VCPs) as alternatives to the federal Superfund program. A well-structured and well-run VCP can keep a contaminated property out of the Superfund program while at the same time providing a mechanism for investigation and cleanup. VCPs often work particularly well to facilitate the cleanup and re-use of “Brownfields,” former industrial or commercial sites where future use is affected by real or perceived environmental contamination.

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NJ Adopts New Site Remediation Rules, Affecting Real Property Owners and Users

Pepper Hamilton LLP
Gregory S. Narsh and Thomas M. Letizia

December 3, 2018

New Jersey has one of the nation’s strictest site remediation regimes, and new amendments to the law may create further compliance challenges for property owners and users. The Industrial Site Recovery Act (ISRA), which is a “transaction trigger” law, requires remediation of certain sites when there is a change in the ownership or operations of the business or property, such as signing an agreement to sell the property. In August, the New Jersey Department of Environmental Protection (NJDEP) adopted several new amendments that property owners and users should be aware of. In this article, we discuss two of the more significant changes.

 Background

NJDEP implemented ISRA in 1993 to create a strong mechanism for cleaning up the numerous contaminated sites across the state. The law requires investigation, quantification and remediation of contaminated property that may not have been required had the triggering transaction not occurred.

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U.S. Warns Iranian Oil Tankers May Be Courting ‘Environmental Disaster’

RFE/RL
Radio Free Europe
Radio Liberty

November 8, 2018

The United States is warning other countries not to allow Iranian oil tankers into their ports, saying the tankers not only could incur penalties under U.S. sanctions but may be courting “environmental disaster.”

The State Department warned the global shipping and insurance industries on November 7 that as part of Washington’s “maximum pressure campaign” to get Iran to change its behavior, insuring Iranian tankers will now incur penalties under the sanctions reinstated this week.

Brian Hook, the special U.S. representative for Iran, said that as major insurers withdraw coverage from Iranian vessels, Iran will likely turn to domestic insurance companies that will not be able to cover losses for maritime accidents that could run into the billions of dollars.

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